The Walls Have Ears: Recording Conversations in School

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This memorandum addresses the number of questions received concerning the recording of conversations in schools. In Maurice River Twp. Bd. of Ed. the Appellate Division of Superior Court determined that the local teachers association had a right to videotape board of education meetings open to the public. The Court determined that there is no constitutional bar to videotaping public school board meetings. The board of education had contended that some persons may be intimidated or uncomfortable under the eye or the camera that the equipment was intrusive and disruptive to the orderly operation of the meeting and that the written minutes are the official records of board meetings. The Court determined that because the meetings are open to the public pursuant to law there is a legal right permitting the videotaping of them. The Board of Education is entitled to formulate reasonable guidelines for videotaping to minimize disruption of the meeting. Such guidelines should include the number and type of cameras permitted the positioning of the cameras the activity and location of the operator lighting and other items deemed necessary to maintain order and to prevent unnecessary intrusion into the proceedings.

The Court stated that furthermore the guidelines should include the disposition and safekeeping of the tapes and procedures for public availability. The Court noted that provisions must be made for the interruption of coverage at the request of a parent who wishes to discuss a personal matter pertaining to a student in the school district. The Court did not address the issue of a staff member requesting interruption of coverage. The staff member apparently would have to rely upon that provision in the Open Public Meetings Act which requires the discussion of personnel matters in executive sessions unless the person being discussed requests a public discussion. If the staff member opts for a public discussion then coverage would not be interrupted and videotaping would be permitted. Consistent with these guidelines board of education meetings in some districts are televised on the local cable television channel.

A more common concern is the audio taping of conversations sometimes surreptitiously. What happens when a person comes into the administrator’s office and indicates that he/she wishes to audiotape the conversation? If the student is a special education student and the discussion concerns the student’s program then the administrator may not refuse the recording of the discussion. Department of Education regulations N.J.A.C. 6A:14-2.3 clearly states:

Participants at the IEP meeting shall be allowed to use an audio-tape recorder during the meeting.

For the protection of the school district if the parent is recording the meeting it is a good practice for school personnel to independently record as well. There is less of a chance that there will be “gaps” in the tape. Also if school personnel anticipate potential problems with the I.E.P. or placement it is a good practice to record the meetings.

What about those situations outside of special education where one person wishes to record the discussion and the other person does not. More recently students are recording discussions in classrooms. What if the discussion is recorded surreptitiously? Is there a violation of law? Not in New Jersey. N.J.S.A. 2A:156A-4 holds that it is not unlawful for a person not acting under the color of law to intercept a wire electronic or oral communication where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception unless communications is intercepted or used for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United State or of this State or for the purpose of committing any other injurious act. This means that a person who is a party to the conversation or discussion may lawfully record the conversation without the consent of the other party provided that the recording is not used for any unlawful purpose. Therefore a student secretly recording a classroom discussion a disciplinary meeting with an administrator or a discussion with a counselor is not violating the law in New Jersey.

According to NASSP research twenty five states and the District of Columbia have laws which permit the recording of conversations where at least one of the parties to the conversation has consented to the recording. New Jersey is one of those states. In eleven other states there is no statute specifically dealing with this issue. It is only in fourteen states that there is legislation which specifically states that interception is impermissible unless all parties consent. Pennsylvania Delaware and Maryland are among these states.

Although the surreptitious recording of a conversation may appear to be unethical at least in New Jersey it is not unlawful. However there is an interesting decision from the Public Employment Relations Commission concerning a contract negotiator who surreptitiously recorded telephone conversations with the negotiator for the public employer and then played back the recorded conversations at the bargaining table. PERC determined that the circumstances in this matter demonstrated a failure to negotiate in good faith and constituted an unfair labor practice. (See Borough of Flemington 14 NJPER 19034). In the Cherry Hill School District in a situation that has made national news a special education student recorded a classroom discussion where he was allegedly berated. This situation brings a number of unanswered questions concerning “a reasonable expectation of privacy” in the classroom or elsewhere in school. Almost certainly the teacher and the paraprofessional have a diminished expectation of privacy. Something stated publicly in the classroom that is directed at one student or a group of students does not give rise to an expectation of privacy for the professionals and paraprofessionals. Furthermore with regards to an individual student the teacher and/or paraprofessional should not be addressing a private student matter in front of the entire class.

In summary in special education matters parents and school personnel are authorized to audiotape meetings. It is a good practice to independently record the meeting if the parent is recording the meeting. Furthermore if the school personnel anticipate problems with placement or the program the recording shall memorialize what was actually said. This will lessen the potential for future paraphrasing or statements taken out of context if there is a dispute. In New Jersey it is not unlawful for one party to the conversation to surreptitiously record it. Administrators are advised that sometimes comments which are intended to be “off the record” may be on the tape and should therefore be careful in their choice of words. All educators administrators and teachers alike must be careful when addressing students parents and fellow staff members. In this era of advanced technology and social media the walls truly have ears. Most school districts are embracing the technology for its usefulness as a learning tool. The technology is advancing at a rapid rate. The original law with certain exceptions banned the use of beepers in school. The technology has progressed way beyond beepers. School districts will have to update their “technology use” policies with the understanding that every year the “use” policy becomes obsolete so that it will have to continually be updated!